Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

June 04, 2007

NYT Editorials: One All Wrong, One Half Right

by PG

Sunday was a bad day in editorials by New York Times staffers, both the editorial board and specifically Adam Cohen. Cohen's piece on Justice Thomas pretends to examine Thomas's "life experience" and its effect on his jurisprudence, and implies that Thomas sold out to the White Man in exchange for personal power. "In college and law school, he identified strongly with his fellow blacks, and was liberal, even radical, on racial issues. But as he accepted jobs from Republicans eager to hire a conservative black lawyer, he shifted rightward."

That doesn't even make sense in terms of causation. Unless these Republicans figured they could just pick up a heretofore radical black law student and mold him through his gratitude into a conservative*, Thomas presumably was showing conservative tendencies before he became a GOP pet. That is, of course, what an honest glance at Thomas's history reveals: his experiences in law school and immediately after, particularly his being treated as unqualified on the assumption that he wouldn't have gotten a given position without affirmative action, embittered him against AA and made him a great Republican mascot. I find it odd that Thomas didn't detect any hint of the scurrilous policy in his being the first choice to replace the first African American Supreme Court justice, but maybe a guy with only a year as an appellate judge and a mixed "qualified/ unqualified" rating from the ABA did seem like the best option.** Cohen ignores Thomas's year at the DC Circuit entirely, making his conservative jurisprudence on the Supreme Court sound like a big shock, even though liberal groups mobilized against Thomas's nomination precisely because they saw what was coming. All in all, a worthless editorial.

The unsigned editorial starts out promisingly by criticizing Vice President Cheney for his latest attempt to obscure who his buddies are: "The Associated Press reported that Mr. Cheney’s office ordered the Secret Service last September to destroy all records of visitors to the official vice presidential mansion -- right after The Washington Post sued for access to the logs. That move was made in secret, naturally. It came out only because of another lawsuit, filed by a private group, Citizens for Responsibility and Ethics in Washington, seeking the names of conservative religious figures who visited the vice president’s residence." This naturally leads to a recollection about Cheney's refusal to "name the energy-industry executives who met with him behind closed doors to draft an energy policy," though the editorial neglects to mention that the D.C. Circuit ultimately vindicated that refusal on the "no vote? not a member!" theory.

I hadn't heard about Cheney's giving "himself the power to selectively declassify documents and selectively leak them to reporters," but certainly his remark about the gall of detaineers who “demand the protections of the Geneva Convention and the Constitution of the United States” was mildly ludicrous by today's understandings of those protections. Nowadays, we give First Amendment protection even to Communists who advocate for a state that does not protect free speech, and we always have given criminal law protections to defendants who "glorify murder." The defendant's ideology and alleged crimes are seldom relevant to his rights under the law.

So far, so good. But then the editorial goes off the rails:

Mr. Cheney is the driving force behind the Bush administration’s theory of the “unitary executive,” which holds that no one, including Congress and the courts, has the power to supervise or regulate the actions of the president. Just as he pays little attention to old-fangled notions of the separation of powers, Mr. Cheney does not overly bother himself about the bright line that should exist between his last job as chief of the energy giant Halliburton and his current one on the public payroll.

From 2001 to 2005, Mr. Cheney received “deferred salary payments” from Halliburton that far exceeded what taxpayers gave him. Mr. Cheney still holds hundreds of thousands of stock options that have ballooned by millions of dollars as Halliburton profited handsomely from the war in Iraq.

Reviewing this record -- secrecy, impatience with government regulations, backroom dealings, handsome paydays -- it dawned on us that Mr. Cheney is in step with the times. He has privatized the job of vice president of the United States.

The theory of "unitary executive" is not that the other branches have no power to check the president, only that their powers cannot be executive ones because all of those are vested in the president. Note that Bush has not yet dared to defy a Supreme Court decision on the ground that it overreaches into executive power. I consider this theory to be wrong both Constitutionally and prudentially, but it's slightly less insane than the quoted description implies. The separation of powers still exists -- indeed, it's made exceedingly important -- yet is misshapen to maximize precisely the branch of government whose power the Founders most feared.

While Cheney's retained stock options are a little dubious (stock ownership inherently gives the shareholder a interest in Halliburton's future, and unless the Cheneys are refusing the charitable deduction for their dedicated donation of the options' profits to universities, they still get a financial benefit), there is nothing very odd about deferred salary payments; they are a common way to minimize tax impact. The Times editorial board just makes itself sound foolish by putting scare quotes around the phrase. Many workers have various sorts of deferred compensation, and will not see this as obviously sleazy.

I'm not even sure what it means to privatize the job of vice president. Cheney's "handsome paydays" from Halliburton are for work he already did. Surely the Times doesn't think Cheney should be getting paid more by the taxpayers? I agree that Cheney is fond of secrecy and is impatient with government regulations, but these also were traits of Nixon, who hardly can be accused of privatizing the office of the presidency. (Indeed, Nixon probably was one of the more economically socialist presidents we've had, while also being credited both for the modern imperial presidency and the public support for ratcheting that power back.) I'm quite skeptical about the privatization of government functions, but throwing around the term as a catchall synonym for "bad" is stupid.

* Had they taken a tip from Thomas himself, perhaps they would have known to inflict the film version of The Fountainhead on those they needed to brainwash. I am going to be amused if Rand fan Will Baude ends up clerking for Thomas, but even more amused if a SCOTUS applicant who dislikes Rand's work gets that job and has to watch the movie. The whole courtroom speech at the end of the book went into the movie intact.

** Roberts's tenure on the DC Court of Appeals was not much longer -- only two years -- but he received a unanimous ABA vote as "well qualified." He had argued 39 cases before SCOTUS as Principal Deputy Solicitor General, and another 39 in private practice, as well as having a Supreme Court clerkship under his belt. Had his nomination to the DC Circuit by George HW Bush not expired, he would have accumulated as much time on the appeals court, during the Clinton + first Bush term drought of Republican nominations, as Justice Ginsburg did after her 1980 appointment by Carter, which gave her 13 years to wait for a Democratic president.